262 Pa. 62 | Pa. | 1918
Opinion by
F. A. Mizener died leaving a will supplemented by three codicils, in the last of which he gave to his daugh
The first question for determination is, in whom was the right of selection of the bonds, the guardian of the legatee, or the executors. The general rule is, as stated by the court below, that a legacy of a portion of property of unequal value or a portion of a larger quantity implies a right of selection in the legatee, in absence of a provision in the will showing an intent to the contrary: 1 Jarman on Wills, 332; Re Turner, 41 L. R. A. (N. S.) 1052; Lore v. Stiles, 25 N. J. Eq. 381; Youmans v. Youn
What was stated at the time the above opinion was written to be the modern principle has now become a more or less ancient doctrine and has been consistently followed and applied in a long line of subsequent decisions of which Best v. Hammond, 55 Pa. 409; Root’s Est., 187 Pa. 118; Hunter v. Hunter, 229 Pa. 349, and Metzger’s Est., 242 Pa. 69, 72, are illustrations. While the primary consideration in construing a will is to ascertain the intent of the testator, such intent must be gathered from the terms of the will; the question being not what the testator intended to say but the meaning of the words used: Hancock’s App., 112 Pa. 532; Woelpper’s App., 126 Pa. 562; Bruckman’s Est., 195 Pa. 363. A latent ambiguity can exist within the meaning of our decisions only where necessary to identify the subject-matter or object of a devise, and if there is in existence a subject or object that satisfies the terms of the will and to which they are applicable, there is no occasion for the introduction of parol evidence and a doubt suggested by extrinsic circumstances cannot be permitted to affect its construction. To do so would, in effect, amount to changing the will of testator and writing a new one for him rather than interpreting the will of his making: Appel v. Byers, 98 Pa. 479; Root’s Est., supra. This question is discussed and Pennsylvania cases collected in Henry’s Penna. Trial Evidence, Section 379.
We find no latent ambiguity in the present case with regard to the subject-matter of the legacy sufficient to warrant the admission of parol evidence within the meaning of the general rules above stated. That the es-state includes a large number of bonds out of which may be selected an amount equal to $30,000, par value, is admitted. A sub ject-matter exists, consequently, to which the legacy applies. The doubt arising is one suggested by extrinsic circumstances, to wit, the fact that the
The gift is of “thirty thousand dollars, par value of bonds.” Nothing is said concerning the market value of such bonds. It must be presumed testator, a man of considerable property, was aware of the condition of his estate and of the securities held by him, and, therefore, knew that portions of them had a market value below, and others in excess of, their par value. He also, undoubtedly, realized the market value of the securities was subject to change from time to time and that the value of a particular security at the time of executing the will might not be a criterion of its value at a future time when the will would become effective. Knowing this, he deliberately adopted “par value” as the standard of valuation of the gift; made no reference to market or actual value, and left the matter of choice to the legatee. While the terms of the legacy would be fulfilled by the transfer- of bonds of the par value of $30,000, even though without market value, the legatee would not likely make such choice. Her natural selection, on the contrary, would be of bonds bearing the highest market value. This the testator must have contemplated yet placed no limitation on such choice, except that measured by par value. In construing testator’s language all words must be given effect and the court can place no limitation on the market value of the gift without ignoring the words “par value.” To- say this is contrary to the intent exhibited by other parts of the will to equalize the gifts to all his children is no answer. On the contrary, the more logical argument is that the subsequent execution of the codicil is evidence of testator’s change of mind in so far as that specific gift is concerned. Manifestly if testator intended to restrict the gift to
The judgment is reversed, and the executors are now ordered to deliver to the petitioner the bonds selected by her, and specified in her petition, to the par value of $30,-000, or such part thereof as have not in good faith been sold by the executors for the purpose of settling the estate, and to pay to the guardian the value of any bonds so disposed of, or deliver to her, at her option, other bonds selected by her sufficient to realize the total par value of $30,000.